This article is written by Kishita Gupta, a graduate of the United World School of Law, Karnavati University, Gandhinagar. This article discusses the legal age for sex in India along with a brief of some other countries as well. It also covers various aspects related to consent in sexual activity.
This article has been published by Sneha Mahawar.
Table of Contents
Introduction
How old is old enough?
Each of us hears from our parents almost daily that we are not old enough or that we are now grown-up children. Both these statements are contradictory and thus confusing for the child as well. So who decides regarding how old is old enough? It’s weird that we can’t agree on the minimum age at which one must bear responsibility for their own lives and activities in a country where we frequently discuss the demographic dividend and the “power of youth.” In India, most of us wait till we reach the magical age of 18, but it’s not quite that easy. Well, in India, at the age of 18, one attains many rights, such as the right to vote, drive a car, buy cigarettes, log into adult chatrooms, and if you are a girl, then marry. You can enlist at age 19 to defend the country. Even while you can nurse a child once you turn 18, most states, including Delhi, require you to wait another seven years before you can visit a nightclub or have your first ‘official’ alcoholic beverage. And even while the state only allows you to operate a vehicle after you are 18, in India, you are also free to engage in sexual activity, which is with due ‘consent’, making it the legal age of consent.
In this article, the author will be discussing the legal age of consent for sexual activity in India along with a brief overview of some other nations. We will be discussing some major aspects surrounding the legal age of sex and how the legislation has evolved over the years.
Convention on the Rights of the Child
The 1989 Convention on the Rights of the Child in Article 1 mentions that every human being who is below the age of 18 years is to be considered a child unless the age of majority is attained by the law applicable to the child. While Article 5 states that the State parties shall respect the rights, responsibilities and duties of the parents or whoever is the guardian of a child, to provide appropriate guidance as per the evolving capacity of the child according to the standards set by the Convention.
Additionally, Article 12 requires States to guarantee children who are capable of developing their own opinions the freedom to express those opinions in all situations that affect them and to give those opinions the weight they deserve in accordance with their age and maturity. These ideas have also been reaffirmed in general comments to the Convention.
Evolving capacity as per Article 5
General Comment No. 20 (hence referred to as ‘GC 20’) reiterates the particular status of adolescents and the need to take into account children’s growth and growing capacities while enforcing children’s rights under the Convention. Additionally, “approaches developed to assure the implementation of adolescents’ rights differ greatly from those established for younger children,” according to the statement. Adolescence should be a stage of life that promotes positive growth, and during this time, states should put in place policies to aid adolescents in navigating their changing sexual identities. Additionally, according to GC 20, States must “introduce legislation recognising the right of adolescents to take increasing responsibility for decisions affecting their lives” and age restrictions must be “consistent with the right to protection, the best interests principle, and respect for the evolving capacities of adolescents,” such as the right to decide on medical services or treatment.
A similar statement is made in General Comment No. 14 that there may be circumstances where ‘protection’ factors affecting a child (for example, which may imply limitation or restriction of rights) need to be assessed in relation to measures of ’empowerment’ (which implies a full exercise of rights without restriction). In these cases, the balancing of the elements should be dictated by the child’s age and maturity. It also states that while determining the child’s best interests, evolving capacities must be taken into account.
Age of consent
GC 20 specifically states that States should avoid criminalising adolescents of similar ages for factually consensual and non-exploitative sexual activity and instead take into account the need to balance protection and developing capacities. The age of consent should closely reflect the recognition of the status of human beings under the age of 18 as right holders, in accordance with their evolving capacity, age, and maturity, according to General Comment No. 4 (hereinafter, ‘GC 4’).
According to General Comment No. 13, sexual abuse includes any sexual activity that is forced upon a child by an adult and for which the child has a legal right to protection, as well as sexual activities that are committed against a child by another child if the child offender is significantly older than the child victim and exerts pressure through intimidation, threats, or other means. Therefore, it is against India’s duties under the Convention to criminalise all teenage sexual behaviour before the age of 18.
Legal age for sex as per the POCSO Act , 2012
Background
In response to extensive reports of pervasive child sexual abuse and the campaigns against it, the Protection of Children from Sexual Offences Act (POCSO Act) was passed in 2012 to establish a comprehensive legal framework for addressing the issue. The legal age of consent was sixteen when the Act went into effect. The Protection of Children from Sexual Offenses Bill 2011 (hereinafter referred to as “the Bill”) was examined by the Parliamentary Standing Committee, which argued that while adults did commit crimes against children, it was also necessary to protect children from being sexually abused by their own peers and relatively older children and that setting the age at 18 was in accordance with the Convention. This would seem to indicate that the intention was not to make adolescent consenting sexual conduct illegal. In fact, the Standing Committee’s proposal for the Bill included provisos in the sections on “penetrative sexual assault” and “sexual assault,” stating that consent would be considered for children between the ages of 16 and 18 in accordance with the provisions of the Indian Penal Code 1860 (which at the time set 16 years as the age of consent) and that “emerging social reality regarding awareness, understanding, and exposure of adolescents cannot be overstated.” But this was rejected, and the provisos were removed “to preserve the rights of the child and to protect children from abuse”; the Standing Committee also thought that the deletion was in accordance with the Convention. They also mentioned the Juvenile Justice Act of 2006, emphasising how the consent question is rendered completely irrelevant once a minor is listed as under the age of 18. The psychological constructions of childhood, which emphasise that after the last stages of development are completed, there is little to distinguish the more psychologically mature minor from adults, contrast sharply with this very rigorous description.
Nevertheless, disregarding such theoretical notions, it was also argued that the aforementioned definition is in line with the terms of the United Nations Convention on the Rights of Children, to which India is a party. The Standing Committee, however, disregarded the provisions of Article 5 of the CRC, which emphasise the significance of a child’s developing abilities. This idea shows how the law must understand that maturing is a complex process that is not defined by a single rite of passage but rather by a succession of staged transitions marked by the acquisition of increasing responsibility and self-sufficiency.
The NCPCR had also suggested decriminalising consensual non-penetrative sexual activity “between two children who are both over 12 years of age and are either of the same age or whose ages are within 2 years of each other” and consensual penetrative sexual activity “between two persons who are both over 14 years of age and are either of the same age or whose ages are within 3 years of each other.” The NCPCR had also suggested keeping the age of consent at 16 years. These clauses were also left out of the Act, which ignored the autonomy and developing abilities of adolescents, treated all who engaged in any sexual activity as children in violation of the law and assigned a criminal status to all such interactions, including consenting ones.
According to the Justice J.S. Verma Committee Report, which proposed changes to the criminal law in India in response to the Delhi gangrape in December 2012, Parliament set the age of consent at 18 on the grounds that doing so would fulfil its obligations under the Convention. This made all sexual activity, whether consensual or not, in which (at least) one party is under the age of eighteen illegal. It was clarified that the Convention was not intended to prohibit consensual sex between people under the age of 18 but rather to protect minors from sexual abuse. It suggested that the consent age be lowered to 16 based on its interpretation of the Convention and the arguments put up by various groups. Additionally, the 205th Law Commission of India Report advocated making 16 the legal age of consent.
The fact that the Act addresses the gaps left by the IPC’s weak provisions, however, is its most notable accomplishment. Section 375 of the IPC was the main provision that dealt with circumstances like those covered by the Act. Only non-consensual penal-vaginal intercourse is recognised as a crime, and all other types of penetration are not included in the purview of the IPC provisions. Section 377 also failed to criminalise the act of forcing the victim to touch himself, which is also a primary method of sexual gratification for the deranged perpetrator, even if they recognised unnatural sexual intercourse as an offence. A close reading of the Act’s provisions reveals that Section 3 of the POCSO Act addresses these problems with the aforementioned provisions.
Provisions of the POCSO Act
The following provisions of the POCSO Act must be noted:
- According to Section 2(1)(d) of the Act, ‘child’ refers to any person who is below the age of 18 years.
- According to Section 3 of the Act, penetrative sexual assault, which refers to inserting body parts or objects into a child, or making a child do this with another; akin to the rape provision in the Indian Penal Code, is criminalized. The act of manipulating any part of the child’s body to penetrate into the vagina, urethra, anus, or any other part of the child’s body, as well as the act of forcing the child to do so with him or any other person, are also included in the definition of the term.
- According to Section 7 of the Act, sexual assault, which refers to touching the private parts of a child with sexual intent, is criminalized;
- According to Section 11 of the Act, sexual harassment with sexual intent includes, showing any object/body part, or making any gesture aimed at a child, or making a child exhibit their body, or enticing or threatening to use a child for pornography, is criminalized.
Please take note that the Act is gender neutral, meaning that both the criminal and the victim may be of any gender. Therefore, since there is no concept of consent and any sexual interaction with a person who is younger than 18, any sexual activity with them would be illegal.
Interpretation of the POCSO Act
A significant fraction of all the cases decided under the Act include consented or “romantic” relationships, and several lower courts have declined to sentence adolescents who are under the legal age of consent in these circumstances. For instance, it was noted that a ‘majority,’ or ‘60%,’ of cases stem from ‘romantic’ relations in interviews for a study of cases under the Act conducted in Andhra Pradesh. Similar to this, a report published in November 2017 on cases brought under the Act discovered that 35% of the study sample’s cases had romantic relationships, and 94% of these instances ended with acquittals. The study came to the conclusion that this was due to the fact that the legal age had been raised to 18, the girl had become hostile, or the prosecution was otherwise unable to establish the offence. In a study conducted in Maharashtra, 273 (20.52%) of the 71 Act-related instances out of 1330 that were examined were labelled as “romantic.” In such situations, conviction rates were 9.15% and acquittal rates were 90.85%. Only two of the 27 “romantic” instances in similar research conducted in Assam and all of the ones in Karnataka ended in acquittals.
According to research carried out by “The Hindu” in 2013 in Delhi and 2015 in Mumbai, incidences of consensual sex that were testified in court by girls were assessed to constitute 30% and 23% of the total recorded cases of sexual assault in the respective cities. In a study conducted in Delhi between January 2013 and September 2015 by the Centre for Child and the Law, National Law School of India University (also known as the NLSIU study), it was discovered that 186 out of the 526 reported complaints of sexual assault under POCSO, 28% of the total were related to people between the ages of 16 and 18. After the adolescent girl refused to testify against the sexual partner in over 90% of these 186 accusations, the sexual partner was found not guilty. This study also revealed that older underage girls were reluctant to be charged with statutory rape under Section 375 of the Indian Penal Code since they were in a committed and consensual relationship with the accused and did not support the prosecution of sexual assault. Between April and May 2015, a similar study was carried out in Lucknow, and it revealed that, of all the cases brought by the parents of an adolescent daughter, more than half involved the girl being in a consensual relationship.
In some of these cases, the unwillingness to convict stems from the inability to determine the age of the ‘victim,’ the fact that the ‘victim’ and the ‘perpetrator’ are married (and she occasionally is pregnant), or the fact that the ‘victim’ has previously been married. However, the majority of these cases are brought by the girl’s family after she and her boyfriend eloped due to parental disapproval (for various reasons like caste or religion); in some “romantic” cases, the girls’ court testimony against their boyfriends is unfairly influenced by their families. The girl frequently either declines to testify or becomes hostile, claiming that she is older than 18 or that there was never any physical contact. Consent is typically not brought up in such circumstances. However, let’s examine a few of the instances where the Act itself and the consent age were discussed.
According to the judgement in State v. Suman Dass (2013), the word “assault” is important in this case, not ‘consent,’ and the judge construed the phrase ‘penetrative sexual assault’ in light of the definition of assault under the Indian Penal Code. The judge ruled that “law cannot and should not prohibit teens from experimentation of this nature” and that “if that interpretation is allowed, it would mean that the human body of every individual under the age of 18 is the property of the State and no individual below the age of 18 can be allowed to have the pleasures associated with one’s body.” The judge rejected the claim that the Act criminalises all adolescent sexual activity. This judgement was upheld by the Delhi High Court also.
The IPC definition of assault was utilised to interpret the Act in State v. Shiv Nand Rai (2013), where the accused was charged with aggravated penetrative sexual assault. The girl testified that the boy did not exert undue influence, fear, or pressure on her. According to the Delhi District Court judge, “in cases of critical age between 16 and 18 years, Section 4 of the POCSO Act has to be interpreted to distinguish between an act which is per se criminal for being in the nature of coercion, fear, inducement, or exploitation committed upon a child from an act which would otherwise criminalise a person for having done something which is without any malice, ill will, or ulterior motives.”
The Court granted bail and noted that “because of their impressionable age, girls and boys both may tend to get provoked and there can be a curious and very compelling demand on the body to get into such kinds of relationships” in Sunil Mahadev Patil v. State of Maharashtra (2015), a case involving a 15-year-old girl and a 20-year-old boy who eloped.
In the case of Shambu Thilak v. State of Kerala (2016), a 17-year-old girl and a 20-year-old boy engaged in consensual sexual activity before getting married after the girl reached majority. According to the judge, this was a case of a love affair rather than a crime that had a significant negative effect on society or reeked of great perversity or depravity. The girl herself stated that she did not want the prosecution to proceed, which led to the case being dismissed.
Some other examples of the same issue in different states are the cases of State v. Akshay Balu Bacchav (2016), State v. Sachin Gotiram Kedar (2016), State v. Rupesh @ Banti Bajirao Mokal (2016), State v. Saidul Ali (2016)(2016), and State v. Geenya Gupta (2016).
Legal age for sex as per the Indian Penal Code
Did you know that the legal age of consent was 10 years in 1860 when for the first time a law was introduced on this in British India? The Age of Consent Act, 1860 permitted the legal age to be 10 years. The Act was a result of a case where Phulmony Devi, a female minor, wed a 35-year-old guy when she was between the ages of 10 and 12. She passed away when her spouse compelled to have intercourse with her. India refers to this terrible colonial-era atrocity as The Phulmoni Dasi Rape Case. However, with time, 16 years was decided to be the age of consent under Section 375, Clause 5, IPC. While 15 years was decided to be the age in Exception 2 proviso to Section 375, IPC.
Such a tradition can be traced back to the period of invasion by foreign invaders. Many Indian women were married to soldiers of foreign invaders at the time India was conquered. Similar to how Indians encountered invaders repeatedly, Indian women suffered the same fate repeatedly. The custom of child marriage emerged as a means of eradicating this circumstance and as a result of the underlying societal unrest.
In addition, it is clear from reading the history of India during the Middle Ages that Indian Kings and Generals continued to engage in conflict with one another in order to defend their individual honour and dignity and to further their separate states. Many of the young male population’s deaths were a result of this at the time. It could be yet another factor in the development of such traditions in India. Although it could have seemed appropriate at the time, this ritual eventually led to the deaths of many young girls.
The Criminal Law Amendment Act of 2013 changed Section 375 of the Indian Penal Code to make the consent age for sexual activity 18 years old. This brought the law into compliance with clauses in every other statute that recognise children as people under the age of 18. Additionally, a marriage entered into between two individuals where one of them is a minor, defined as under the age of 18 in the case of girls and 21 in the case of boys, may be deemed void under the Prohibition of Child Marriage Act, 2006 (PCMA). Within two years of reaching the age of majority, the spouse who was a minor at the time of the marriage may nullify it.
But under Exception 2 of Section 375, if a man has nonconsensual intercourse with his own wife while she is at least 15 years old, that is not considered rape. This has not changed, which leads to the unusual scenario where a husband is allowed to coerce a minor wife between the ages of 15 and 18 into sexual activity.
However, a change of events took place in 2017 with the Supreme Court’s decision in Independent Thought v. Union of India (2017). The Non-Governmental Organisation, Independent Thought, submitted a writ petition asking the Supreme Court to rule the exception unlawful. The Supreme Court demanded recent data on the health and consequences status of girls married between the ages of 15 and 18 as well as the number of child marriage prohibition officers appointed under the Prohibition of Child Marriage Act, 2006 on the date the petition was scheduled for hearing before a Bench of Justices Madan B. Lokur and Deepak Gupta. As a result, Child Rights Trust, a non-governmental organisation that works to prevent child marriage, joined as an intervenor on August 28th, 2017. They were also frequently heard.
Independent Thought and the Child Rights Trust stated that there is no logical connection between the Section’s goals and the division of minor girls into married and unmarried groups for the sake of punishing sexual assault. Additionally, it is against the State’s obligations under Article 21 and international conventions to protect children’s rights.
The Union of India initially claimed that it was the responsibility of Parliament to address the problem induced by the exception in Section 375. In addition, they said that despite repeated considerations by Parliament, the categorization was kept due to social constraints and the State’s reluctance to intervene in marital affairs.
The age of consent was increased to 18 for the purposes of Exception 2 by the two-judge bench on October 12th, 2017, through two concurring opinions. Additionally, it demanded legal changes to stop and rectify violations of girls’ rights brought on by child marriage.
| Year | Age of consent under section 375, 5th clause, IPC. | Age mentioned in the Exception to Section 375, IPC | Minimum age of marriage under the Child Marriage Restraint Act, 1929 |
| 1860 | 10 years | 10 years | – |
| 1891 | 12 years | 12 years | – |
| 1925 | 14 years | 13 years | – |
| 1940 | 16 years | 15 years | 15 years |
| 1978 | 16 years | 15 years | 18 years |
| 2017 | 18 years | 15 years | 18 years |
An important aspect is that families of young couples torment them by bringing fictitious rape cases against their partners, even though rape is not rape and youthful romance is not rape. The Indian Penal Code’s Sections 375 and 376 are carelessly enforced in cases to restore the family’s honour and reputation in society, despite the young couple’s clear consensual relationship.
A mandatory statutory presumption in Section 114A of the Indian Evidence Act requires the courts to assume that consent is absent if such a claim is made by the victim in order to refute this argument. The onus is on the accused, and he must refute the statutory presumption raised against him only when the victim pleads lack of consent. In certain situations, the victim is under no further obligation to prove that there was no consent.
A global perspective on the legal age for sex
An international movement is currently underway and various government actions are being taken in this area. The legal age of consent has been steadily rising across the globe. In the majority of the nation, it ranges from 16 to 18 years. While some of them are discussed below, others can be accessed by clicking here.
Canada
Close in age exceptions exist in nations like Canada, allowing people to exercise their right to physical autonomy and privacy. A person who is 14 or 15 years old may consent to sexual conduct if the other person is not more than five years older, according to Section 150.1(2.1) of the Criminal Code of Canada. Between the pair, there shouldn’t be any authority or dependence in place. Similar to this, under Section 150.1(2) of the Criminal Code of Canada, children aged twelve and thirteen may agree to sexual activity if the other person is not more than two years older. There is no authority, reliance, or trust relationship.
Nigeria
The legal age in Nigeria is 11. The legal minimum age at which a person can give their assent to engaging in sexual conduct is known as the age of consent. Nigerian law prohibits minors under the age of 10 from giving their consent to sexual activity, and those who do so risk being charged with statutory rape or another related crime. When someone engages in consensual sexual activity with a child under the age of 11, they are in violation of Nigeria’s statutory rape legislation.
Japan
Japan’s Age of Consent is 13 years old. The legal minimum age at which a person can give their consent to engaging in sexual conduct is known as the age of consent. In Japan, it is illegal for anybody under the age of 12 to give their consent to sexual activity; those who do so risk being charged with statutory rape or another related crime. If a person engages in consensual sexual activity with a child under the age of 13, they are in violation of the statutory rape statute of Japan.
The United States of America
In the US, 16 is considered the age of consent. The legal minimum age at which a person can give their assent to engaging in sexual conduct is known as the age of consent. Sexual behaviour involving people under the age of 15 is illegal in the United States, and those who do so risk being charged with statutory rape or another related crime. Each state in the United States has local laws establishing an age of consent and related rules such as close in age exemptions, which are violations of the country’s statutory rape statute. The legal age is between 16 and 18 in all states.
The United Kingdom
In the United Kingdom, 16 is considered to be the age of consent. The legal minimum age at which a person can give their assent to engaging in sexual conduct is known as the age of consent. In the United Kingdom, those who are 15 or younger are not legally allowed to provide their consent for sexual activity, which can lead to charges of statutory rape or another related offence. The United Kingdom’s member nations and territories each have local laws governing the legal age of consent, and the United Kingdom’s statutory rape legislation is broken. The legal age of consent in each of these situations is presently 16. There are fifteen areas in the United Kingdom with local laws governing the consent age.
South Korea
In South Korea, the age of consent is 20 years old. The legal minimum age at which a person can give their assent to engaging in sexual conduct is known as the age of consent. Sexual behaviour with anybody under the age of 19 is illegal in South Korea, and those who do so risk being charged with statutory rape or another related crime. When someone engages in consensual sexual activity with a Korean citizen younger than 20 years old, they are in violation of the country’s statutory rape laws.
Conclusion
There are multiple views on whether the age of consent should be reduced to 18-16 years or fixed at 18 years. It can be concluded that at one point, the law is actually helping in the reduction of sexual abuse of children. But at the same time, it is being misused by traditionalists who are against consensual sexual activity between two individuals, resulting in various rape cases. Therefore, the law must be amended in such a way that it addresses a solution to the issue of misuse. An age proximity clause may be included to keep the laws against child sexual abuse while exempting consensual sexual conduct between people who are close in age from criminal prosecution. Adolescent sexual and reproductive health and education will be provided, and perhaps most crucially, their legal agency will be recognised.
Frequently Asked Questions (FAQs)
Is it a crime to have sex before 18 in India?
The Indian government considers all sexual behaviour and activity by those under the age of 18 to be crimes.
If a girl gives consent for sexual activity before she turns 18, is it allowed?
According to Section 375 of the Indian Penal Code, any sexual activity that occurs before a person is 18 years old, regardless of their consent, constitutes statutory rape. This was made possible by the 2013 Criminal Law Amendment Act, which raised the age of consent from 16 to 18.
References
- STUDY ON THE WORKING OF SPECIAL COURTS UNDER THE POCSO ACT, 2012 IN ANDHRA PRADESH
- STUDY ON THE WORKING OF SPECIAL COURTS UNDER THE POCSO ACT, 2012 IN KARNATAKA
- http://haqcrc.org/wp-content/uploads/2017/12/study-on-the-working-of-special-courts-under-the-pocso-act-2012-in-maharashtra.pdf
- Controversy over Age of Consent
- Study on the Working of Special Courts Under the POCSO Act, 2012 in Assam | HAQ : Centre for Child Rights
- Did you know that the legal age of consent in 1860 was 10 years
- AGE OF MARRIAGE VS. AGE OF SEXUAL CONSENT
- Age of Consent to Sexual Activity
- Legal Ages of Consent By Country
- Japan Population 2022 (Demographics, Maps, Graphs)
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